Intensive Fin. Serv. Inc. v Colson
Annotate this CaseDecided on August 5, 2022
Civil Court of the City of New York, Bronx County
Intensive Financial Service Inc., Claimant,
against
Kashene A. Colson, Defendant.
Index No. CC-30085-21/BX
Jeffrey S. Zellan, J.
After trial, the Judgment of the Court is as follows: Judgment for defendant/cross-claimant with conditions.
Claimant brings this small claims action seeking money damages for allegedly unpaid professional services for having prepared federal and state individual tax returns for defendant for the 2017, 2018, 2019, and 2020 tax years. Defendant cross-claims for money damages resulting from an alleged disturbance claimant caused at defendant's workplace allegedly resulting in defendant's loss of hours/pay.
The parties do not dispute that claimant's owner, Sedgwick Iyasere, prepared all four years of tax returns at issue, and filed three of them (2018, 2019, 2020) on behalf of defendant. The parties also do not dispute that claimant did not file the 2017 returns, although the parties dispute the circumstances that led to the non-filing.[FN1] However, regardless of the undisputed services performed by claimant, for the reasons described herein, the Court cannot award the claimant any money related to these services.
An individual who is licensed as a certified public accountant ("CPA") in another jurisdiction, engaged in the practice of public accountancy, which expressly includes tax preparation, and has a principal place of business in New York State, must be licensed as a CPA in New York State. Office of the Professions, NY State Ed. Dept., Scope of Practice Considerations and Registration Requirements for Licensed Certified Public Accountants, http://www.op.nysed.gov/prof/cpa/cpascopediffactinact.htm#one (last accessed Aug. 4, 2022). Further, a CPA from another jurisdiction cannot satisfy this requirement by registering as a tax preparer. [FN2] Id.; and Education Law § 7407.
Mr. Iyasere testified that he is licensed as a CPA by the State of New Jersey and not licensed in New York.[FN3] According to the electronic records of the New York State Department of State, to which the Court takes judicial notice, claimant is a domestic business corporation with its principal place of business in Bronx County, New York, offering various financial services in, among other places, New York.[FN4] This is consistent with Mr. Iyasere's own testimony and documents, such as his business letterhead and the tax preparer's section of the subject returns, both of which indicate that claimant's principal place of business is located in Bronx County, New York, and the tax preparation services at issue in this action also took place in in Bronx County, New York. As such, to prepare tax returns in New York in exchange for a fee, Mr. Iyasere was required to possess a CPA license with a current registration from the New York State Education Department. Education Law §§ 6512 et seq. and 7400 et seq. As Mr. Iyasere lacked the necessary professional license to perform the work at issue, claimant cannot collect for his services. Thorne v. Alleyne, 54 Misc 3d 38, 39 (App. Term, 2d Dept. 2016) (reversing judgment for unlicensed contractor and finding that "[w]ithout a showing of proper licensing, [*2]plaintiff was not entitled to recover on his claim"). Accordingly, claimant's claims must be dismissed.
As to the counterclaim, the Court finds that a conditional judgment is appropriate. Defendant alleges that claimant caused a disturbance at his workplace concerning the unpaid fees for services resulting in lost wages. The Court finds that prompt return to defendant of any documents defendant previously provided claimant in relation to the tax preparation and other services (per the instructions below) would, in lieu of a monetary award in the amount of one day's pay ($139.00 based on $17.00/hr for 8 hours), further substantial justice between the parties. See, Jones v. Daniels, 43 Misc 3d 40, 41 (App. Term, 1st Dept. 2014) (staying entry of monetary judgment to allow alterative return of chattel); and 8 N.Y.C.R.R. § 29.10(a)(8) (client's right to copies of returns and work product from public accountant). In other words, if claimant returns all the documents to defendant per the order below, claimant will not have to pay claimant any money to satisfy the judgment against claimant.
Accordingly, it is
ORDERED that the clerk is directed to amend the caption in this action from Intensive Financial Service Inc. v. Colson Kashene to Intensive Financial Service Inc. v. Kashene A. Colson; and it is further
ORDERED that claimant Intensive Financial Service Inc.'s claims in this action are dismissed, and the clerk is directed to enter judgment as to those claims accordingly; and it is further
ORDERED that the clerk is directed to enter judgment in favor of defendant/cross-claimant Kashene A. Colson and against claimant Intensive Financial Service Inc. in the amount of $136.00, together with costs and disbursements in this action and interest from the date of judgment; and it is further
ORDERED that claimant must return to defendant any and all documents (including all originals) that defendant provided claimant in relation to the preparation of defendant's tax returns, which claimant must send to defendant by certified mail return receipt requested, no later than September 2, 2022, and it further
ORDERED that claimant's timely compliance with the above directive shall satisfy the judgment aforementioned judgment against claimant in the amount of $136.00; and it is further
ORDERED pursuant to CCA §§ 1805(d) and (e) and 1805-A(d) and (e) that the Court's decision and order is without prejudice to defendant advising the Attorney General of the State of New York, the Office of the Professions of the New York State Education Department, and/or the New York City Department of Consumer and Worker Protection of the issues and allegations raised in this action.
This constitutes the Decision and Order of the Court.
August 5, 2022Bronx, New York
Hon. Jeffrey S. Zellan, J.C.C. Footnotes
Footnote 1:Claimant admits that although he was unable to file defendant's 2017 returns because they needed defendant's handwritten (not electronic) signature, and although the 2017 returns remained unfiled and accruing penalties and interest, claimant never sent defendant a formal letter warning defendant (claimant's purported client) of the seriousness and urgency of the matter. Rather, defendant testified that he made phone calls and sent texts regarding this matter, although claimant offered no evidence to support that assertion.
Footnote 2:Although Mr. Iyasere testified that he "believed" he may have been registered to prepare tax returns in New York, he could not provide evidence of past or current registration, and the Court's own check of the Department of Taxation and Finance's publicly-available database, to which the Court takes judicial notice, also did not indicate that Mr. Iyasere is registered as a tax preparer or facilitator. See, Tax Law § 32 (registration of tax preparers in New York); and NY State Dept. of Taxation & Fin., Verify Your Tax Preparer or Facilitator, https://www.tax.ny.gov/tp/reg/tpreg_list.htm (last accessed Aug. 4, 2022).
Footnote 3:The online license verification portals of New York and New Jersey confirm as much. N.J. Div. of Consumer Affairs, License Information, https://newjersey.mylicense.com/verification/Details.aspx?result=79615de2-42c5-43f4-a6d6-66f0b3e76e5e (last accessed Aug. 4, 2022) (indicating that Mr. Iyasere is licensed in New Jersey with his principal place of business in Bronx County); and Office of the Professions, NY State Ed. Dept., Verification Searches, https://www2.nysed.gov/COMS/OP001/OPSCR1?profcd=07 & pname=iyasere (last accessed Aug. 4, 2022) (confirming that Mr. Iyasere has never been licensed to practice public accountancy in New York).
Footnote 4:See, Div. of Corporations, NY State Dept. of State, Entity Search, https://apps.dos.ny.gov/publicInquiry/EntityDisplay (last accessed Aug. 4, 2022); and Intensive Financial Service, Inc., Homepage, https://www.intensivefinancialservice.com (last accessed Aug. 4, 2022)
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